HKSAR v. BULLEN CHRISTIAN ANTHONY

HCMA 50/2017

[2018] HKCFI 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 50 OF 2017

(ON APPEAL FROM ESS NOS 10982 AND 26227–28 OF 2016)

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D E C I S I O N

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Background

1.  Aggrieved by the costs refusal order made by Deputy Magistrate C P Yu (“the Magistrate”), the Applicant appealed against the order.  The appeal hearing was heard and the judgment was handed down on 9 October 2017.  The Applicant now sought leave for a certificate to bringthe case to the Court of Final Appeal under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 with the Notice of Motion filed on 6 November 2017.  The Applicant acted in person all along.  The Respondent did not object to the abridgment of time for the Applicant to file the said Notice.

The summonses

2.  The Applicant, being the owner of a local vessel which was notlicensed, was summonsed for 2 offences committed on 6 October 2015 and 19 January 2016 [1] [ESS 10982/2016, 26227/2016]; and for another offence, being the owner of a local vessel, without reasonable excuse, failed to paint or permanently affix to or mount on the deck housing or the hull, the marking of certificate of ownership number of the vessel [2] [ESS 26228/2016].

3.  The Applicant pleaded not guilty to the summonses.  The Magistrate ruled that the first 2 summonses were time-barred, and also ruled that there was no case to answer in relation to the remaining summons, ESS 26228.  The Magistrate refused the application for costs made by the Applicant on the ground that the Applicant was acquitted on technicalities.  

Grounds of the motion

4.  In his Notice of Motion, coupled with his affidavit, the Applicant submitted that:

(1)   Whether an acquitted defendant could be deprived of costs when there had been no full trial and no defence heard including a statutory one and had this violated his presumption of innocence.

(2)   Whether a defendant could bring suspicion upon himself during the investigation or at trial if he had raised a time bar issue at the earliest possible occasion.

(3)   Whether the appellate court was entitled to consider allegations and treat them as findings of fact when a defendant had not been given an opportunity to challenge them.

(4)   In the third summons, whether the lower court and the appellate court were correct in speculating (ought to be [sic] have been convicted) or questioning the verdict (dismissal) when a defendant was not given an opportunity to raise the statutory defence of reasonable excuse and was not given the opportunity to make legal arguments on the quality of the evidence.

(5)   Whether a statement by a Magistrate in the lower court that he was disappointed at the failure of the prosecution to produce a proper certificate amounted to a material irregularity.

Considerations

5.  In these application proceedings, I have repeatedly reminded the Applicant that the nature of these proceedings would be different from the previous appeal hearing in June 2017.  The main hurdle for the Applicant was to convince this Court that a point of law of great and general importance is involved.

6.  The law relating to costs in criminal cases is well settled, as promulgated by the Court of Final Appeal in Tong Cun Lin v HKSAR [3]  and in Ting James Henry v HKSAR [4]. A costs order is a discretionary exercise of power by the trial judge or magistrate. The cases above mentioned make it clear that the conduct of a defendant during the investigation and at the trial would be taken into account.

7.  The Applicant complained that he was not given any chance to challenge the allegations and/or to raise the statutory defence.  Neither was he allowed to rebut or criticize the statement made by the Magistrate.

8.  The special feature of this case at trial was that two summonseswere ruled time-barred and the remaining one could not pass the half time, since the Magistrate ruled that there was no prima facie case against the Applicant.  I understand that the Applicant had studied law for a period of time, but it does not mean he could fully comprehend the legal position in relation to costs application and the application for a certificate to take the case further.  Given the ruling made by the Magistrate, there was no need to proceed to the defence stage at trial.  As such, there was also no need for the Applicant to put forward his statutory defence, if any, and to comment on the quality of evidence at trial.

9.  Guiding principles were promulgated by higher courts, and theexercise of discretionary power depends on specific set of factsin different cases.  It would be absurd and could lead to unjust result if such discretionary exercise of power is done by means of strict application of one formula.

10.  The facts and the development of this case are specific.  I cannot see any valid grounds to say that this case involved a point of law of great and general importance that justified a certificate to be issued.

Conclusion

11.  For the abovesaid reasons, I refused the application.

12.  I have considered the costs application made by the Respondent but decided not to make any costs order in these proceedings.